Brett Kutnick represented plaintiff Warner Alan Properties in the seller’s appeal of a summary judgment that granted the plaintiff specific performance of an agreement to purchase an apartment complex in Fort Worth and in the plaintiff’s cross-appeal challenging the trial court’s order barring the plaintiff from recovering incidental damages in addition to specific performance.  After presenting oral argument, the Fort Worth Court of Appeals affirmed the summary judgment in favor of the plaintiff, reversed that part of the trial court’s judgment barring the plaintiff from recovering damages attributable to the seller’s delay in performing the contract, and remanded the case to the trial court for further proceedings.  Paciwest, Inc. v. Warner Alan Properties, LLC, No. 2-07-443-CV, 266 S.W.3d 559 (Tex. App.–Fort Worth 2008, pet. denied).

Residents of a justice-of-the-peace precinct gathered signatures to call a local-option election to legalize the sale of alcoholic beverages in their precinct—i.e., to make the precinct “wet.”  The boundaries of the precinct, however, overlapped two former justice-of-the-peace precincts that had previously voted “dry.”  Deborah G. Hankinson and Rick Thompson filed briefs on behalf of the City of Addison—a real party in interest that opposed the local-option election—that convinced the Texas Supreme Court to hold that an election in the current justice-of-the-peace precinct would not be effective to change the “dry: status of the two former justice-of-the-peace precincts that voted “dry.”  Accordingly, the Court held that the Commissioners Court had no duty to order the local-option election.  In re Calla Davis, 269 S.W.3d 581 (Tex. 2008).

Brett Kutnick was a principal member of the legal team that represented NDS, a manufacturer of irrigation products, in the appeal of a $56 million judgment based on alleged trademark infringement. The case settled in mediation after oral argument.  National Diversified Sales, Inc. v. DFW Plastics, Inc., No. 02-06-00231-CV (filed in the Fort Worth Court of Appeals).

Texas A&M University v. Bading was the state-court litigation against Texas A&M University arising from the tragic collapse of the famous Aggie Bonfire.  In this case, a number of commercial entities (which had been sued by injured students or their families) filed third-party claims against the University (which had not been sued by the injured parties).  Then-Assistant-Solicitor-General Ryan Clinton represented the University in its appeal to the Waco Court of Appeals, arguing that there was no waiver of sovereign immunity for third-party claims against governmental entities under the Texas Tort Claims Act.  The Waco Court of Appeals agreed, dismissing the third-party claims for lack of jurisdiction.  Texas A&M Univ. v. Bading, 236 S.W.3d 801, 803 (Tex. App.—Waco 2007), pet. denied by 298 S.W.3d 617 (Tex. 2009).

Deborah Hankinson was one of the lawyers who represented the investors in a surgery center in the appeal of the trial court’s determination that a Rule 11 settlement agreement was unenforceable. The Dallas Court of Appeals reversed, holding that the settlement agreement was enforceable.  Disney Bingham Investments, Inc. v. Gollan, 233 S.W.3d 591 (Tex. App. ‑‑ Dallas 2007, no pet.).

In Breen v. Texas A&M University, several Texas A&M University officials were sued for failing to stop University students from participating in the tragic construction of the 1999 Aggie Bonfire.  Then-Assistant-Solicitor-General Ryan Clinton was lead counsel for the University, and successfully argued that the University’s officials were protected by qualified immunity under federal law because the Fifth Circuit had never recognized a claim based on the “state-created danger” theory of liability.  The Fifth Circuit agreed, and affirmed the trial court’s summary judgment for the defendants based on qualified immunity.  Breen v. Tex. A&M Univ., 485 F.3d 325, 341 (5th Cir. 2007), modified on rehearing, 494 F.3d 516, 118 (5th Cir. 2007).

The Houston Community Hospital admitted and treated three federal employees covered by health benefits plans that were administered by Blue Cross under the Federal Employees Health Benefits Act.  Blue Cross allegedly misrepresented the level of insurance coverage of each employee and then refused to pay accordingly.  The Hospital sued Blue Cross for negligent misrepresentation and violations of the DTPA.  Although Blue Cross is a private insurance carrier, Blue Cross claimed that its contract with the United States Office of Personnel Management to provide health insurance to federal employees vested Blue Cross with the federal government’s immunity defenses.  Blue Cross filed a motion for summary judgment based on official immunity and the sovereign immunity of the United States.  The trial court denied the motion for summary judgment, and Blue Cross filed an interlocutory appeal to the Fifth Circuit under the collateral order doctrine.  Rick Thompson argued, and the Fifth Circuit agreed, that Blue Cross failed to make a substantial claim of immunity sufficient to support interlocutory review of the trial court’s summary judgment ruling under the collateral order doctrine. Houston Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., 481 F.3d 265 (5th Cir. 2007).

Three former Dallas County deputy constables sued the County under §1983, alleging violations of procedural and substantive due process related to their termination of employment under the Dallas County civil service system.  The trial court granted a partial summary judgment on liability, conducted a trial on damages, and rendered a $2 million judgment against Dallas County.  The court of appeals affirmed the trial court’s judgment, and Dallas County appealed to the Texas Supreme Court.   Deborah G. Hankinson, with the assistance of Rick Thompson, convinced the Supreme Court to vacate the judgment and remand for a hearing regarding whether Dallas County had just cause under the civil service rules for terminating the former deputy constables.  The Court also concluded that public employees protected by a civil service system have no substantive due process right to continued employment. County of Dallas v. Wiland, 216 S.W.3d 344 (Tex. 2007).

In In re Castillo, a sitting justice on Texas’s Thirteenth Court of Appeals filed suit against the Thirteenth Court of Appeals itself, and its justices, in a dispute over assignment of majority opinions after the sitting justice lost her reelection bid.  Ryan Clinton, then an Assistant Solicitor General, represented the court of appeals in the mandamus proceeding in the Texas Supreme Court, arguing that the court of appeals was within its discretion when determining opinion-authorship assignments, especially given the suing justice’s limited time remaining on the court.  The Texas Supreme Court agreed, and denied the petition for mandamus.  In re Castillo, 201 S.W.3d 682 (Tex. 2006).

In City of San Antonio v. Hartman, the City was sued after a family drove around a warning barricade and was swept away in flood waters.  Ryan Clinton, then a Texas Assistant Solicitor General, argued to the Texas Supreme Court on behalf of the State and in support of the City, arguing that the Texas Tort Claims Act did not waive sovereign immunity for the plaintiffs’ claim.  The Texas Supreme Court agreed, holding that the City was protected by sovereign immunity for its actions in responding to the emergency situation.  City of San Antonio v. Hartman, 201 S.W.3d 667, 671-72 (Tex. 2006).

In his quest for a seat on the Texas Court of Criminal Appeals, Judge Robert Francis timely filed an application and a 225-page petition signed by hundreds of eligible voters in favor of his candidacy for statewide office.  The Republican Party of Texas certified Francis as a candidate, but a Travis County district court ordered him excluded from the Republican Primary ballot because of clerical errors on a number of pages in Francis’s petition.  With the assistance of Rick Thompson, Deborah Hankinson successfully argued to the Supreme Court that “the ballot is not restricted to those who never make a mistake.”  The Supreme Court reversed vacated the district court’s order and abated the underlying proceeding to permit Francis to cure the defects in his petition. In re Francis, 186 S.W.3d 534 (Tex. 2006).

In In re Commitment of Fisher, the Corpus Christi Court of Appeals struck down the Texas Civil Commitment of Sexually Violent Predators Act after concluding that the Act violated Due Process protections of the Texas and United States Constitutions.  Hankinson Levinger LLP’s Ryan Clinton, then an Assistant Solicitor General for the State of Texas, appealed the case to the Texas Supreme Court as lead counsel for the State.  Clinton wrote the brief to the Texas Supreme Court, arguing that the Act’s restraints on sexually violent predators complied with the state and federal constitutions. The Texas Supreme Court agreed, reversing the court of appeals and upholding the statute’s constitutionality.  In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005)

In State v. McAllister, the State of Texas appealed the trial court’s judgment in favor of a driver of a truck who struck and killed a TxDOT employee working on the side of a highway.  The State, represented by then-Assistant-Solicitor-General Ryan Clinton, argued in briefing and at oral argument that the Texas Tort Claims Act did not waive sovereign immunity for the driver’s property-damage claim because the injury was not caused by the use or operation of a government-owned vehicle.  The Amarillo Court of Appeals agreed, reversed the trial court’s judgment, and held that the driver take nothing on his claim against the State.  State v. McAllister, No. 07-03-0405-CV, 2004 WL 2434347, *5 (Tex. App.—Amarillo Oct. 29, 2004, pet. denied) (mem. op.).

The Texas Highway Beautification Act prohibits the erection and maintenance of billboard signs within 660 feet of highways if the signs are visible from the highway.  A landowner installed a billboard on his non-residential property adjacent to Interstate 20.  The billboard read, “Just say NO to Searches.”  The Texas Department of Transportation is charged with enforcing the Texas Highway Beautification Act and directed the landowner to remove the sign.  The landowner filed suit, challenging the constitutionality of the Act on First Amendment grounds.  The court of appeals concluded that the Act violated the First Amendment to the United States Constitution as applied to the landowner.  Rick Thompson briefed and presented oral argument to the Texas Supreme Court on behalf of TxDOT and convinced the Court that the Act was a content-neutral regulation permitted by the First Amendment. Tex. Dept. of Transp. v. Barber, 111 S.W.3d 86 (Tex. 2003).

Brett Kutnick was on the legal team that represented Main Street in the appeal of a $14.5 million judgment in a case involving fraudulent representations in connection with a failed joint venture with Shell Oil. The Dallas Court of Appeals affirmed as to liability, and affirmed in part and reversed in part as to damages.  Main Street Ventures v. Shell Oil Products Co., 90 S.W.3d 375 (Tex. App. — Dallas 2002, pet. dism’d by agr.).

Governmental entities, like the TNRCC, have sovereign immunity from suits for alleged breaches of contracts. Nevertheless, IT-Davy, a general contractor, sued the TNRCC for breach of contract, alleging an equitable, waiver-by-conduct exception to the sovereign-immunity doctrine. According to IT-Davy, the TNRCC waived its immunity from suit by accepting full performance of the contract without fully paying for the accepted services. The trial court and the court of appeals adopted this waiver-by-conduct exception. In the Texas Supreme Court, Rick Thompson argued that the TNRCC was protected by its sovereign immunity from suit and that any waiver-by-conduct exception to sovereign immunity should be adopted by the Texas Legislature, not Texas courts. The Texas Supreme Court agreed, reversed the court of appeals judgment, and dismissed IT-DAVY’s breach of contract claim because it was precluded by TNRCC’s immunity from suit. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002).